-::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.37/2018.
Date of filing: 02.07.2018.
Date of disposal: 21.12.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Sahana @ Vaishali D/o Late Sanjeevkumar
Biradar, Age:12 years, Minor represented by
maternal Uncle Sri Santhosh S/o Madivalappa
Biradar,. Resident of GP No.639, Kamalnagar,
Now Tq.Kamalnagar and Dist: Bidar
Karnataka-585417.
( By Sri.Sanjaykumar.S.Patil.,Adv.)
VERSUS
OPPONENT/S: 1) The Manager, Axis Bank Ltd. Basavaklyan,
Agent, Servicing Branch, of Max Life Insurance.
At ground floor, Biradar Complex Beside
Halkude Hospital, Main Road Basavaklyan
Dist.Bidar. 585327.
2). The Assistant Manager, Max Life Insurance, Co.
Ltd,. (claims) Plot No.90A Sector 18,
Udyog Vihar, Gurugram Haryana,-122015.
3). The Chairman, Max Life Insurance, Co. Ltd,.
Reg, Office, Max House, 3rd floor, ]-deleted
1 Dr.Jha Marg Okhla, New Delhi 110020.
(By. R.1.Sri.R.K.Ganure
R.2.Smt.Chetana V.Patil., Adv.
R.3. is deleted)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
This complaint u/s 12 of the Consumer Protection Act is that of a minor female child through her uncle alleging deficiency of service in the part of the opponents.
2. As per the complainant, her widowed mother by name Sanjana, was a business woman of Bakery and misc. Construction items and also was possessing a transport Heavy Goods vehicle bearing No.KA25C0520. At one point of time she was negotiating with Shri Ram Transport Finance, Basavakalyan for a loan and was advised by the later to obtain cheques from Axis Bank. Accordingly, she opened an account with O.P.No.1 and the later persuaded her to obtain a a policy of Max Life Insurance, acting as agent of the Insurance Company. A rosy picture of securing prospective financial benefit, long term savings, protection s and retirement solutions was painted before the Life Assured by the agent Bank and she purchased policyNo.258082809 on 16.03.2015 by paying annual premium of Rs.49,450/- for a sum assured of Rs.5,86,809/- on maturity/death. The complainant was made nominee and her uncle was mentioned as the guardian.
3. The Life Assured Sanjana died due to heart attack (precisely due to Acute myocardial infarction as per Annexure-E, death Certificate of Medical officer, Community health Centre, Kamalnagar) on 05.01.2017 at about 9.A.M., consequent upon which, a claim was lodged with the Insurer, which was rebutted claiming suppression of material facts, for which the present complaint.
4. Upon notice, the opponents have put up appearances through counsels and have filed versions in the case. The O.P.No.1 in its’ versions has denied the contents of the complaint as a whole, albeit submitting that, subject to matter of proof, the Insurance company is liable to pay the compensations. However, at one point of time, the O.P.No.1 Bank has conceded its’ formal role in collecting premium and its’ name as agent is reflected in the policy at Annexure-A. However, we concede the assertions of the Bank that, it is only and agent and liability, whatsoever determined should not be fixed upon it, but the Insurance company.
5. The versions of the O.P. Insurance Company is but of hyper technical nature, primarily disputing the impleadment of O.P.No.3. However, the O.P.No.3 was subsequently deleted as prayed for by the complainant.
6. It is thereafter claimed that, the complainant has not approached this forum with clean hands and has suppressed material facts. It is stated that, the complainant in the past has approached the Insurance ombudsman of Karnantaka for relief against the repudiation and the Ombudsman has vide order date.23.05.2018 negated the claim of the complainant. It is alleged by the Insurance company that the Deceased Life Insured was suffering from tuberculosis much before submitting the proposal but has concealed the fact from the Insurance Company. She was under treatment at Bidar Institute of Medical Science for such ailment and has untruthfully stated about her good health. Had the Insurance Company any knowledge, it could have refrained in selling the policy at the threshold.
7. The Insurance Company further avers that, on receipt of death intimation, has initiated an investigation as contemplated in clause 8(3) of the IRDA (Protection of Policy holders’ interest) Regulations 2002. The investigation brought out facts that, the deceased Life Insured was taking treatment for Pulmonary T.B. before signing the proposal on 16.03.2015 and was also suffering from Retroviral disease which deteriorated her health condition. Knowing fully well about her illness, to the relevant queries in the proposal form, she had replied in negative. It is also claimed that, the deceased Life Insured had registered herself in the “Revised National Tuberculosis Programme” for Retro viral decease in 2011, which fact was canvassed before the Ombudsman by M/s Bharati Axa Life Insurance. The Insurance Company prays for dismissal of the case with costs owing to the suppression of material facts (ailment) by the Late proposer.
8. Both sides have submitted documents in an effort to substantiate their respective stands, have filed evidence affidavits, reiterating their averments in the pleadings and written arguments and Synopsis. Both sides were further heard in length. Documents submitted are listed at the end of this order.
9. Weighing the pros and cons of the case, the following points arise for our consideration.
- Does the complainant prove deficiency of service?
- Was the O.P. insurance company prove that, it was justified in refuting the claim?
- What orders?
10. Our answers to the points are as detailed underneath.
- In the affirmative.
- In the Negative.
- As per final orders owing to the following:-
:: REASONS ::
11. Point.No.1: The complainant has submitted documents substantiating the facts of purchase of Policy bearing No.258082809 on 16.03.2015. She has also submitted copy of death certificate from the competent authority denoting the death of deceased of Life Insured on 05.01.2017(Annexure-D). Another medical certificate issued by the Medical officer C.H.C. Kamalnagar has been submitted vide Annexure-E certifying the date and time of death as 05.01.2017 at 9a.m. The place of death and examination of the corpse is certified to be at the residence of the deceased policy holder at Kamalnagar. Another two certificates (copies) have been submitted vide Annexures J & K from District T.B. centre, Bidar and Taluk Medical officer, Aurad Certifying that, the deceased life assured was not enrolled for treatment of Tuberculosis. All these document go a long way to prove that, late Life Assured has died due to acute myocardial infarction (death of middle layer of the heart muscles) which is a biological phenomena, and not due to T.B. or Retro viral ailment and denial of the death claim is nothing but deficiency of service and we answer the point accordingly.
12. Point.No.2: Challenging the contentions of the complainant it has been put forward by the opponent that, the deceased life Insured was suffering from T.B. and was undergoing Retroviral therapy prior to the under writing and she has kept that fact concealed from the Insurer while submitting the Policy proposal. To substantiate the aforesaid contention the Insurer has filed voluminous documents out of which the main reliance is placed on Annexure-R1, the order of the Ombudsman rejecting an earlier claim and Annexure-R.5, copy of the medical records obtained from the Bidar Institute of Medical Science Bidar.
13. In the Annexure-R.1, though it is seen that, the dispute was abut non settlement of insurance claim of one Late Sanjana, her identify is not explicit. From the last but one page of the Ombudsman’s order, we perceive a discussion about submission of M/s Bharati Axa about the deceased Life Assured obtaining another policy and undergoing treatment by registering herself with Revised National Tuberculosis programme for Retro viral disease since 2011. No such document is produced before us. When this document Annexure-R.1, is put across the documents submitted by the complainant vide Annexures J & K, certifying non such registration and the identity of the alleged deceased is under a smoke screen, Annesure-R.1 loses its’ sheen in entirety, No reliance or reference can be put on this document.
14. Next fixing our gaze on Annexure-R.5, we observe, the set of medical documents pertain to one SANJANA W/o Sanjukumar, Resident of Mailoor, Bidar. She was admitted in the hospital as IPNo.214/2017 on 03.01.2017, and has died on 05.01.2017 at 11.55A.m. . Albeit as per the entries in the first page of this document it is interalia mentioned as a K/C/O (Known case of ) PTB since 2 years and on CAT II RVD positive and on treatment, the question remains. Can this Sanjana’s image, a resident of Mailoor dying at 11.55 A.m. on 05.01.2017 at BRIMS be super imposed on that of Sanjana dying at 9A.m. on 05.01.2017 at Kamalnagar, Aurad Taluk, Bidar District as per Annexure-E? Can the similarity in the names and date of death be a valid ground to deny Insurance claim put forward by an orphan minor female child?
15. Significant to note that, the opponent Insurer has not opted to file evidence affidavit of the treating physicians or examining them in any manner by which light could have been thrown about identification of the deceased. Adducing none such evidence is fatal to the opponents defence. In the instant case, the complainant has submitted number of case laws from out of which, the judgement passed by the Hon’ble National Commission reported in (2014) CJ-22 (NC)-New India Assurance co. Ltd. v/s Mohinder Kaur is only relevant to the present case. In paras 8&9 it has been held as underneath.
This report has been given by Dr. Gaur after 27 months in which it has specifically mentioned that there was epileptic attack and CT scan was taken which showed a right basifrontal meningioma, but petitioner has not placed on record CT scan taken in 1998 and record of any treatment taken in 1998. In such circumstances, this report which has been given after 27 months and that too just before 5 days of death of Mohan Singh cannot be believed. Investigator has also submitted in his report that he also discussed the case with Dr. Jindal, Neuro Surgeon on 27.01.2001 and according to him, disease was at least two years old, but he has also mentioned that Dr. Jindal did not give him any opinion in writing. Dr. Jindal has not been examined by the petitioner before District Forum. In such circumstances, no reliance can be placed on the investigator’s report regarding Dr. Jindal’s opinion.
Learned District Forum has elaborately discussed evidence and allowed complaint and reasons given by District Forum have been reiterated in the impugned order and we do not find any reason to differ with the opinion given by learned District Forum and upheld by learned State Commission.
16. Additionally, we may refer to another two judgements of the Hon’ble Natinal Commission reported in 2009(3) CPR 161 (NC) Rashida Khatoon v/s L.I.C. of India. In Para-5 and 6 of which it has been held as below:-
As far as the merit is concerned, there is no disputing the fact that the State Commission has dismissed the complaint based on the report dated 23.02.1995 of Dr.B.I. Singh, Sr.Consultant, which has been produced before us. It is not in dispute, that no affidavit by the concerned Doctor was filed, whose report has been filed. There is no other material to substantiate as to who is this Dr. B.I. Singh? as also, in what context did he go to him, as also where is the hospital record on which this report has been based? Had any affidavit been filed or original record of hospital/consultant filed/produced, that would have given an opportunity to the petitioner to cross-examine him.
The legal position of the case is, that this report remains unsubstantiated, unproven and, in our view, the State Commission fell in error in relying upon an unproven document, hence the order passed by the State Commission cannot be sustained, which is set aside and the order passed by the District Forum is restored.
17. The next case of reference is reported in (IV) CPJ-202(NC)-Ranvir(Mrs) @ Ranbir Kaur v/s L.I.C. of India In paras 9,10 & 11 it has been held as follows:-
Thus, it is clear that the doctors at PGI Chandigarh also have not confirmed the liver disease was due to alcohol as there was short history of alcoholic consumption.
Considering the facts and circumstances of the case, it is clear that for the want of repudiation, the OP took medical certificates from two doctors, who were not qualified in allopathic medicine, who mentioned the diagnosis of chronic liver disease without any confirmation from laboratory investigations or ultrasound sheets. Both the certificates/reports did not carry and importance as a medical certificate. The PGI also have not given definitive diagnosis of alcohol liver cirrhosis.
On the basis of aforesaid findings, there is no conclusive evidence to show that DLA was suffering from chronic liver disease due to long alcoholic consumption. Thus, the repudiation done by OP is unjustified. Therefore, we set aside the order of State Commission and restore the order of District Forum. As we have noted that the District Forum has not specified the rate of interest in its order, therefore, we direct the OP to pay insured amount with nterest@9% per annum from the date of submission of claim to the complainant along with Rs.10,000 towards mental agony within 90 days from the date of receipt of a copy of this order, failing which, the entire decretal amount will carry further interest @ 12% per annum from the date of pronouncement of this order till its realization.
18. Considering the entire aspects of the case discussed above, we conclude that, the opponent Insurance company has repudiated the claim unjustifiedly and hence concluding this point in the negative, we proceed to pass the following.
ORDER.
- The complaint is allowed in part;
- The O.P.No.2, Insurance Company is directed to pay a sum of Rs.5,86,809/- (sum assured) to the complainant together with interest @ 12% p.a. calculated from the date of lodging the claim i.e. 14.04.2017 till realisation;
- The O.P.No.2 is further directed to pay a sum of Rs.25,000/- towards mental agony and sufferings together with a further sum of Rs.5,000/- towards litigation fees;
- From the award amount at (b) when realised, 75% would be deposited in a Nationalised or Schedule Bank of choice in favour of the complainant till attainment of Majority. The balance 25% together with the interest compensation and litigation expenses be disbursed in favour of the complainant through a/c payee cheque;
- Case against O.P.No.1 stands dismissed;
- Four weeks time granted to comply this order.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 21st day of December 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure.A- Copy of policy schedule bearing No.258082809.
- Annexure.B– Intimation letter from the insurance company
date.17.04.2017. - Annexure.C- Copy of premium payment receipt.
- Annexure.D– Copy of death certificate of Late.Sanjana.
- Annexure.E- Copy of Medical certificate from the medical Officer
C.H.C. Kamalnagar date.18.01.2018. - Annexure.F- Copy of registration certificate of vehicle No.KA.25.C
0520. - Annexure-G- Copy of Aadhar Card of Late Sanjana.
- Annexures.H- Copy of Aadhar Card of the complainant.
- Annexure.J.(I-ommitted)- Copy of certificate from office of District
T.B. Center Bidar date.07.04.2017. - Annexures-K- Copy of certificate of M.O.T.C.R.N.T.C.P. Aurad TD.
Document produced by the Opponents.
- Annexure.R.1- Copy of order by the insurance Ombudsman
Karnataka. - Annexure.R.2- Copy of field up proposal Forum.
- Annexure.R.3- Copy of acceptance letter of the policy from the
opponent insurance company. - Annexure.R.4- Contract of insurance terms and conditions and claim
intimation put together. - Annexure.R.5- Copy of death Certificate of Late Sanjana.
- Annexure.R.6- Copy of medical records from Bidar institute of
medical Science. - Annexure.R.7- Copy of repudiation letter date.24.03.2017.
- Annexure.R.8- Copy of application of the guardian of complainant
regarding re-consideration of death claim 10.04.2017. - Annexure.R.9- Copy of negative intimation to the application an
annexure R.8. date.27.04.2017. - Annexure.R.10-Copy of application of Sri. Santosh to the insurance
Ombudsman date.18.05.2018. - Annexure.R.11- Copy of response submitted by the insurance
company before the Ombudsman.
Witness examined.
Complainant.
- P.W.1- Sri. Santosh S/o Madiwalappa Biradar Uncle and guardian
of the complainant.
Opponent.
- R.W.1- Sri. Kamaljeet Sharma, Deputy Manager (claims) of Max Life
Insurance Company Limited.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
